Yet Another Copyright Troll Case Kicked Out Of Court, With Excellent Reasoning From The Judge

from the this-is-becoming-more-and-more-common dept

We've been seeing a series of district court rulings around the country rejecting the copyright trolling practice of suing a whole bunch of John Does in a single lawsuit, where the clear goal is simply to identify the individuals so the copyright holder can send threatening letters and seek to extract a settlement payment. The fact is that these copyright holders are using the court as a pressure point in their business model, rather than for actual judicial purposes. It's good that it appears to be becoming common knowledge among the judiciary that these sorts of lawsuits are unacceptable. This particular case was rejected for a bunch of good reasons, starting with the fact that moving forward with the case and granting early discovery won't actually identify the defendants, since IP addresses are such weak identifiers.

The magistrate judge, Howard R. Lloyd, notes that granting early discovery is only supposed to be done if doing so actually identifies the Does. And while the copyright holder, Hard Drive Productions, insists that it will, the judge notes that the plaintiff's own arguments prove this is simply not true. That's because they admitted that once they got the IP addresses, they would then need to contact the owner of the account and seek to identify who was actually using the account at the time.

Thus, plaintiff will only consider naming and serving a defendant after it has (1) contacted the ISP subscriber one or more times, (2) researched that subscriber and anyone else who might have used the ISP subscription, (3) met and conferred with the subscriber; (4) attempted to settle with the subscriber, (5) elicited evidence of a defense from the subscriber, (6) evaluated the credibility of that evidence, and (7) found it wanting. In addition, plaintiff also admits that in the event that a subscriber refuses to “participate” in the above process, plaintiff may need to request further discovery. It is abundantly clear that plaintiff’s requested discovery is not “very likely” to reveal the identities of the Doe defendants. Indeed, plaintiff admitted at the hearing that neither it nor any other plaintiff it is aware of has ever served a single defendant in one of these cases where early discovery has been granted.

The judge goes on to reject a number of other arguments as well, before denying the early discovery and dumping all but one of the defendants (also becoming standard in a lot of these lawsuits). But the conclusion discussion is where it gets really good:

The court realizes that this decision may frustrate plaintiff and other copyright holders who, quite understandably, wish to curtail online infringement of their works. Unfortunately, it would appear that the technology that enables copyright infringement has outpaced technology that prevents it. The court recognizes that plaintiff is aggrieved by the apparent infringement and is sympathetic toward its argument that lawsuits like this one are the only way for it to find and stop infringers. However, the court will not assist a plaintiff who seems to have no desire to actually litigate but instead seems to be using the courts to pursue an extrajudicial business plan against possible infringers (and innocent others caught up in the ISP net). Plaintiff seeks to enlist the aid of the court to obtain information through the litigation discovery process so that it can pursue a non-judicial remedy that focuses on extracting “settlement” payments from persons who may or may not be infringers. This the court is not willing to do.

As these kinds of rulings continue to roll out of courts, hopefully a strong precedent is being set across the country that such lawsuits are simply not acceptable.

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Such cases would have been a slam dunk just 5-6 years ago. Times are changing. I think the idea that copyright enforcement can be oppressive has started to become mainstream.

Look at the SOPA/PIPA protests. This mainstream attitude has become "we respect copyright, but we aren't going to violate people's liberty and privacy to protect it". This is a big deal, a big change from the past. And I think all of us who fought so hard to protect people from the will of copyright crusaders deserve a lot of credit for this.

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It was brewing for a while... one of the first districts that was hit by this legal plague. The history of rulings there reflects the cognitive process — how judges started to understand little by little that their court was blatantly abused.

There were some milestones, Zimmerman's ruling for instance. Virtually every judge from this district expressed his or her disapproval to trolls' tactics.

The last "pro-troll" judge, Maria-Elena James, finally changed her mind (December) after being pissed off by Ira Siegel. Since then filing troll cases in CAND became futile and trolls moved to new grounds.

NACD judges made important contributions to the case law. For example, swarm-based joinder was challenged and jurisdiction over out-of-state defendants was questioned in Northern California first. Basically every motion or order in the US quotes NACD documents.

Note that this case is an old one and was filed before CAND became apparently hostile to trolls.

So, replying to a pro-troll commenter below, no, this order will not be overturned — it is an evolutionary ruling rather than revolutionary, it simply summarizes what the other judges from this district said or thought.

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This is the sort of ruling that is very likely to get overturned, because it allows users to hide behind a shield of the ISP. Essentially, the judge set the bar too high, as all of the points are in fact valid - and normal steps in any civil lawsuit, including an offer for an out of court settlement. He attempts to deny the plaintiff all the normal mechanisms that are a part of every other civil litigation.

If the judge wants every case filed as a "doe" case in his court, he may find himself swimming in more cases than he can ever handle, ruing the day that he made this silly ruling.

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Even if they could unbundled the lawsuit, but they'd have to pay tens of thousands of dollars in filing fees. I think the judge would rather have the increased funding. But I don't think this the plaintiff's strategy would be sustainable if such a thing would occur.

You also assume they will appeal this verdict, which is very expensive in its own right.

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I am not assuming they will appeal the verdict. Rather, I expect another case to come along and over ride it.

If the judge forces them into filing single cases (at $10,000 a crack) against defendants who are unlikely to even have the money to pay that sum, it would appear to be a move by the courts to block justice by making it too expensive to file suit. Effectively the judge is blocking their attempts to get justice.

If they did file the suits individually, the defendant found guilty would be liable for much more than their typical settlement amount - and pre-trial settlement amounts would be increased to the point where most people couldn't afford to settle. Does that help anyone out, really?

The court has proposed a dead end for rights holders, where it's too expensive to bring suit, too costly to move forward, and any judgement unlikely to be satisfied. The judge may as well have ruled copyright invalid.

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Hardly. The court has put an end to the fishing expidition that has become the common tactic in these cases. No longer can they use the court to force discovery on an issue that isn't being litigated. It also invalidates the IP address = you bs that has been egregiously abused.

If it's too expensive for the rights holder, waaah. That's not anyone's problem but the rights holder. What I see is a judge who has put a stop to sanctioned blackmail. Finally.

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IP laws themselves are unjust. What's justice is abolishing them and putting those who lobbied for and passed 95+ year copy protection lengths in jail for 95+ years for the social harm they have caused. What's justice is putting IP trolls in jail for the social harm they have caused. Our current system isn't justice.

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Even with the courts totally on the side of "rights holders" (as they mostly were in the past) these kinds of lawsuits have always ended up in some kind of failure.

All that is left doing this is porno companies. And they do it not so much for the empty legal threat, but the ability to publicly shame. Since it becomes a public record that Joe Schmoe was sued for infringement of "extreme gay teen buttsex.mov". They especially like targeting people living in the Bible belt, go figure.

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Actually the judge is following the rules of procedural fairness and placing equity back into filing cases.

The bar has shifted bck to the center where it should be,law firms will find that Judges do not appreciate their courts being used for the initiations of business models.

And If it costs 10K to initiate a single case against something the plaintiff is absolutely sure is a blatent copyright violation, then that is the cost of business.

It is NOT justice to go on fishing expeditions, it is not Justice to allow vindictive or threatening attempts to extract revenge.

As for you stating it being too expensive for rights holders to bring suit, etc... your lack of understanding that this was occurred for allowing respondents to bring suit against unwarranted and in some cases malicious plaintiffs is hypocritical in the extreme.

It's amazing how you scream of Justice...when equitable behaviour is actually now being enforced for both sides.

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"And If it costs 10K to initiate a single case against something the plaintiff is absolutely sure is a blatent copyright violation, then that is the cost of business. "

Still the problem that it is likely that the defendant won't e able to pay off a settlement even for $1 plus legal costs... which makes the 10K filing fee a huge barrier to bringing the lawsuit. It doesn't matter if you are right or wrong if you have to lose 10K a shot to prove it... it becomes justice denied.

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Still the problem that it is likely that the defendant won't e able to pay off a settlement even for $1 plus legal costs

If you are already certain of this much before you even make the filing fees, then why, oh why are you continuing to pursue the case to bleed the defendant of what little money he has? Your definition of "justice denied" is you not getting to demand every penny of a defendant's life savings?

It doesn't matter if you are right or wrong if you have to lose 10K a shot to prove it.

And you wonder why most people here have utter disdain for copyright enforcement. That's your whole motive, right there. You're not concerned with justice; you're concerned about getting a pound of flesh and you don't give two shits about where you get it.

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How does a $350 filing fee = $10K?
I'm just curious which troll you spread fud for.
Your not boastful enough to be Steele.
Your not logged in making yourself appear grand so not Randazza.
You can form a full sentence so your not Stone.

I'm guessing you must be one of the others hiding under the rock of Prenda law. If your playing the home game, Prenda also counts for Steeles firm on the bingo card.

Now lets look at this poor put upon troll operation.

They have named and taken to court 0 (ZERO) defendants out of the at least 118 mass cases filed by the firm.
They disbanded in IL and ran for Florida to take advantage of the Writ of Pure Discovery state law to bypass the blocks put into play in the Federal Courts about joinder and silly rules of law.
They are still using their own "super secret" tech to gather the IP addresses, now with a new name and still not licensed properly.
Oh and they named unmasked Does PUBLICLY on their website making allegations they can't actually back up, to intimidate and defame them so they would settle faster. (You can take it down when someone sues you over it, but the internet never forgets idiots.)

You presuppose that IP only identification is enough to win a case at trial. Ignoring that IP only identification has yet to be challenged in court as to its reliability, but there is much expert evidence showing how flawed it is.

You presuppose that the copyright filing for the movie is actually accurate. As many recent cases have revealed many of these "movies" are rehashes of already existing movies, or have copyright dates given AFTER the case was filed, or there is no copyright filing. So with the cap of actual damages your looking at maybe $50-$60 in damages.

So other than your full of it... got anything else to add that I can make fun of you for?

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He attempts to deny the plaintiff all the normal mechanisms that are a part of every other civil litigation.

Generally can't appeal a discretionary discovery ruling, and if so, the Judge is granted the widest latitude for the discretionary call.

Judge didn't deny plaintiff normal mechanisms at all, which are: find and serve the defendant, then do discovery. They were asking for relief that can only be granted on a showing of good cause, which trolls can't show.

Simply put, they're free to sue 'em individually, find 'em and serve 'em through investigation like everyone else. But here they don't get to use legal process to facilitate their shakedown.

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"Judge didn't deny plaintiff normal mechanisms at all, which are: find and serve the defendant, then do discovery. They were asking for relief that can only be granted on a showing of good cause, which trolls can't show. "

It's a poor choice. There is no way to find the defendant without filing, and at $10,000 or more per case, it's painful to file to discover that the defendant is a welfare bum without 2 cents to rub together. The process is tilted in a way that allows ISPs to be a shield for illegal activity, which is unfair to the plaintiffs.

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This is honestly none of our business. The RIAA were the very first ones to start all of this and they made it very clear that taking things to the courts and litigating for thousands of dollars in settlements, regardless of how many innocents had to be dragged, was their prerogative.

Now that the courts are refusing to play the game for them they can go lie down in the bed they made. They have lost the goodwill of the man in the street and increasingly, the goodwill of the courts.

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It's a poor choice. There is no way to find the defendant without filing, and at $10,000 or more per case, it's painful to file to discover that the defendant is a welfare bum without 2 cents to rub together.

This is the same "welfare bum without 2 cents to rub together" that would suddenly magically spend thousands of dollars on entertainment if only they would stop being a "dirty thieving pirate"... right?

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"The process is tilted in a way that allows ISPs to be a shield for illegal activity, which is unfair to the plaintiffs."

This assumes that the plaintiffs were actually harmed by the alleged piracy. So this defendant pirated your porn, lame or even incredible film. It's not necessarily a $4.99 rental loss, or even a $9.99 purchase loss. It might have even led to additional sales. That's what this site is all about.

In most areas of law, you're entitled to your actual damages, which would be that $10, maybe. Not thousands. In the real world, that's a business expense, like the assumed rate of shoplifting at your local drugstore.

It also assumes the plaintiffs get the right person, which IP addresses often do not do.

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> In most areas of law, you're entitled to your
> actual damages, which would be that $10,
> maybe. Not thousands.

Unfortunately when it comes to copyright, that's pre-empted by statute. Big Copy managed to bribe Congress into putting a $250,000/per infringement damage clause into the US Code, so actual damages are irrelevant.

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My point. And if they don't register within three months of publication or in any event before infringement, then no statutory damages are available. They are only entitled to the actual damages.

I haven't seen much discussion on whether these trolls were actually registering their copyrights within the window to even be entitled to statutory damages. I recall one of the trolls ("Far Cry" perhaps?) had a pretty sketchy registration/publication date issue. But being trolls, it was all about the threat and the settlement, accompanied with misrepresentations about how liable the victims would be. So the cases tended not to get to the point in litigation where defendants could assert statutory damages weren't even available.

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"Essentially, the judge set the bar too high, as all of the points are in fact valid - and normal steps in any civil lawsuit, including an offer for an out of court settlement. He attempts to deny the plaintiff all the normal mechanisms that are a part of every other civil litigation."

I think you're (perhaps intentionally) missing the point. From the quote

"Plaintiff seeks to enlist the aid of the court to obtain information through the litigation discovery process so that it can pursue a non-judicial remedy that focuses on extracting “settlement” payments from persons who may or may not be infringers. This the court is not willing to do. "

What we don't want here is another Righthaven. We don't want copy protection trolls to arbitrarily threaten people with expensive lawsuits if they don't pay up with the intent to extract settlement money from whomever is willing to pay, guilty or innocent, while basically backing down (not not even showing up to court) against those who are willing to challenge those lawsuits in court. We don't want a phishing expedition. We want plaintiffs with convictions strong enough to actually challenge the case in court if the defendant wishes to dispute the issue, not ones who simply ask/beg for money with legal threats from those afraid enough to give in while not being convinced enough of their legal ability to win the case before sending legal threats to victims (for lack of a better word) willing to dispute the issue. IOW, what we don't want is trolling. Which is partly why settlements are/should be facilitated by a judge, to avoid such phishing expeditions.

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>If the judge wants every case filed as a "doe" case in his court, he may find himself swimming in more cases than he can ever handle, ruing the day that he made this silly ruling.

Or he may find himself pissed that plaintiffs are insistent on pursuing cases with insufficient solid evidence aside from the faith-based methodology of commissioned investigators and make things even harder for plaintiffs so they stop flooding him with cases and give him some peace for a change.

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This is just the sort of ridiculous ruling that requires us to have SOPA. Since I create art very similar to the plaintiffs in these cases, I was considering following Hard Drive's example approaching John Steele to help protect the art I often create but now that this precedent has happened I am forced to continue talking about paywalls as an alternative.

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I didn't really understand what you said ... which I guess really does make your post a good IP extremist parody since I have trouble understanding anything they say. Well, lately they do seem to be more understandable.

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Glad to see this remark garnered responses. It was an attempt to mimick paywall bob and his occasional mention to his art that he won't mention for fear of us pirating it (not much chance of that!). I was wondering if the argument was coherent; I'd forgotten that it didn't matter.

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It should be up to YOU to take whatever measures you need in order to 'protect your art'. Don't buy a congressman, don't tie up the courts on frivolous lawsuits, don't whine and scream. Put up your paywall. Stand up for yourself!

If they wanted to not look so bad they could be fair about shit. Like 100 % proof that the person did it and also the lawsuit could not be for more then a ticket would cost. If he was a seeder the fine could only be the ticket cost per file size doubled. If he uploaded a gig file 10 gig worth charge em 10 tickets. Even if they cut back to that they're still a bunch of @#$%&@#$@$^@&@%&@!^@& sorry could not think of something bad enough to call them.

Or better yet just setup a goddamn online ppv worldwide the day any movie is released.